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Trademark - Honest use of competitor’s mark for comparison allowed

21st January 

The Delhi High Court has held that failure to point out competitor’s advantage is not necessarily dishonest and that primary objective of Trademarks Sections 29(8) and 30(1) is to allow comparative advertising as long as the use is honest.

The Court dismissed a suit for permanent injunction against advertisement depicting one cup of Complan equal to two cups of Horlicks. It noted that the advertisement does not compare formula of two drinks and that depiction was creative, making comparison on ‘per serving size’ as recognized under provisions of Foods Safety & Standards law.

Rejecting the plea that comparison of hundred (100) grams of plaintiffs and defendant's products should be made, it observed that the concept of 'per serving' size is well recognized not only by the industry but also under the statute.

The Court in the case of Horlicks Ltd. v. Heinz India relied on an earlier decision in the case of Havells India Ltd. v. Amritanshu Khaitan, which had held that though in comparative advertising a certain amount of disparagement is implicit, yet the same is legal and permissible so long as it does not mislead.

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